Данилов Игорь
православный христианин
Тема: #36910
Сообщение: #1141449
13.01.05 19:05
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..//1. To undertake a study on the dissuasive effect of the sanctions incurred by the sects and on the advisability of making these sanctions more harsh.
According to several opinions collected by the Commission, the penalties and allowances for damages which the sects incur would not be sufficiently dissuasive.
Thus, for example, a person who expressed herself before the Commission, who had several lawsuits against sects, said that all told, she calculated that the amount of damage she had undergone directly because of the sects and which was not recouped rose to approximately 120,000 francs [$20,148 US Dollars].
It is difficult to come to a conclusion a priori on the dissuasive effect of the sanctions incurred by the sects and about the advisability of making them harsher.
In spite of work which it undertook, your Commission does not estimate itself able to come to a conclusion about whether the sanctions incurred by sects are sufficiently dissuasive or not, and, less still, on the advisability of making these sanctions more harsh. It is not less inclined to think that the question seriously deserves to be raised.
So, the Commission thinks it would be interesting if the observatory whose creation is recommended would make a thorough study of this question, which would be followed, if necessary, by proposals.
2. To re-examine the mode of slandering
Certain sects are, as one knows, usually slandering. But they cannot always be prosecuted, much less convicted.
Indeed, as the Commission noted, certain sects found a means of circumventing the law concerning the rules relating to the regulation of this infringement. Article 65 of the law of 29 July 1881 on freedom of the press lays out, as one will recall, that "public action and civil action resulting from crimes, offences, and infringments envisaged by the present law, itself prescribing after three months completed counting from from the day when they were committed or from the day of the last act of instruction [legal term?] or of continuation [legal suit] if it has been made." But, these sects sometimes publish reviews containing defamatory items, for which they satisfy the obligation of registration of legal copyright, but do not distribute them, except possibly to a restricted public; then they wait three months to carry out their diffusion, by which delay they avoid being sued.
It appears desirable to your Commission to cure this state of things.
A first possibility would be to lengthen the above mentioned time from three to six months. However, this solution would present several disadvantages. Initially, it would not solve the problem definitively; the organizations in question would then wait six months before carrying out the diffusion. However, to distribute a review six months after the date of publication which it mentions would undoubtedly constitute an embarrassment. The most serious obstacle is rather the political and practical difficulties which the modification of the law of 1881 on the press on this point would raise at the same time. Would it be convenient, indeed, to touch with a significant legislation, which represents a certain balance, and to which the press is very attached? It does not seem so.
A second solution would consist in providing that the date on which was the slandering was made slandering is defined as that of the first setting in distribution with the public - within the meaning of general public, in opposition to a restricted circle, except if this one has vocation only to be diffused within such a circle - the publication which contains it.
Besides, it is in this sense that jurisprudence seems to evolving. Indeed, it was judged that the achievement of the formalities of registration of copyright does not establish any presumption that publication took place on this date and must be held as only one element of appreciation (Cass. Crim. July 1, 1953, Bull crim. No 228); that, in addition, the starting point of the term of three months' limitation is not the date related to the cover of the issues of the number of a weekly magazine, but that of its effective publication resulting from its being put on sale, independent of the fictitious date related to the cover for purely commercial purposes (Paris, January 28, 1977, D. 1978.IR80).
Still, however, it remains to specify that this effective distribution is indeed intended for the public. Your Commission is inclined to think that the best solution is undoubtedly to let jurisprudence bring this precision.
3. To reinforce the protection of expert witnesses before the courts
The expert witnesses before the courts undoubtedly today are not sufficiently protected.
Admittedly, article 434.8 of the new penal code provides that "any threat or any act of intimidation made towards a magistrate, one sworn [a witness] or any other person sitting in a jurisdictional formation, an arbitrator, an interpreter, an expert, or lawyer of a party, in order to influence his behavior in the performance of his duties is punished with three years of imprisonment and a fine of 300, 000 francs [$50,370 US Dollars]." In addition, article 222.12 of the same code lays out that violence against, among others, a magistrate, one sworn, a lawyer, a public or ministerial officer, or any other person acting as an agent of public authority or charged with a mission of public service, in the exercise or at the time of the exercise of his function or of his mission, involving a total disablement of work for more than eight days is punishable with three years of imprisonment and a fine of 300,000 francs [$50,370 US Dollars]."
However, it is not obvious, initially, that article 222.12 applies to legal experts. Even if this were the case, this article presents two principal limits: it is necessary that there was violence which involved a disability lasting more than eight days; this violence must occur in the exercise or at the time of the functions. Which means, in the case of serious violence which does not cause this incapacity and of those - whatever their gravity -- made when the functions are definitively finished, with the purpose, for example, of revenge, that the expert does not benefit from any particular protection.
Neither does Article 434.8 cover possible retaliatory measures against the expert after the opinion or the lawsuit.
According to information collected by the Commission, the absence of sufficient protection for experts would have at least three detrimental consequences:
- the experts in question simply give up coming to a conclusion about businesses likely to attract this kind of trouble to them;
- they continue to fulfill these functions, but they risk suffering an injury from it, of which it is not certain that they will be able to obtain repair because it is not always easy in this kind of situation to identify the culprit and to prove his culpability;
- finally, one cannot exclude the possibility that they may water down their reports or censor themselves, which would be a serious obstacle to the good course of justice.
Your Commission thus considers it desirable to reinforce the legal protection which benefits the experts in order to, as much as possible, make them safe from any pressure or any retaliatory measures.
One could, with this intention, use as a starting point the the various provisions currently protecting magistrates. They are in particular articles 222 and 223 (contempt of court), 227 (attempt at pressures), 228 (violence and ways in fact), 306 (threats), 310 and 311 (aggravated assault) and 434 (destruction, degradations and damage) of the penal code.
4. To permit associations for defense of victims to go 'partie civile' [In searching for the meaning of this legal term, I found the following: ". . . the French system of the 'partie civile' with its procedural rights and guarantees for victims . . . The victim can actively pursue his interests during the trial and ask for compensation. I will use the French term rather than translate.].
No provision currently allows associations for defense of victims of sects to go 'partie civile' in affairs concerning these people.
Admittedly, these associations sometimes succeeded in going 'partie civile' while being based, when the object of the business allowed them, on certain existing provisions. Thus, for example, Article 2.2 of the code of penal procedure states that "any association regularly declared for at least five years [ ] of which the statutory object comprises the fight against the sexual violence [ ] can exert the rights recognized by the [pa?]. It is not thus only in the measure or where the concrete cases authorize associations for defense of victims of sects "to slip" into devices whose principal purpose does not correspond to their specific object that they can go 'partie civile'. Moreover, two associations let the Commission know that several times it had been refused to them to constitute 'partie civile' in affairs concerning victims of sects.
It would however be useful to systematically grant this right to them. And this for three principal reasons:
- these associations could better join the victims and help them in their steps toward justice, in particular those who are most fragile;
- they could compensate them when, for various reasons, in particular the fear that the persons in charge of the sect inspire in them, they do not dare to act themselves;
- they could enrich the information of the magistrates and the legal debates by their interventions.
Granting to these associations the possibility of carrying themselves as 'partie civile' in affairs concerning the victims of sects can itself be accomplished maybe by adding a specific provision to the list of associations mentioned in articles 2.1 to 2.1 of the code of penal procedure, or perhaps by envisaging in article 3 of the code of family that the associations in defense of family benefit, as well as the National Union and the Departmental Union of Family Associations, from this right.
5. To envisage the transmission to the prefecture of an annual budget and reports of general meeting of associations whose annual budget is higher than 500,000F [$83,550 US Dollars].
As one saw, certain sects not only exploit their followers financially, but resort to fraudulent means such as, for example, the dissimulation of certain resources, the use of companies or associations as screens, and the continuation of lucrative activities within the framework of declared associations.
It would thus be advisable to subject these sects to obligations of transparency [or openness] in financial matters. But since it would be difficult, for reasons already mentioned, to single out sects for this action, these obligations should be imposed on all associations starting from a certain level of budget.
It appears reasonable to your Commission to provide that all associations whose annual budget is equal to or higher than 500,000 francs [$83,550 US Dollars] will have to transmit each year to the prefecture of their department a copy of this budget as well as the minutes of their general meeting. The choice of a threshold of 500,000 francs apparently constitutes a good balance between the concern for financial transparency and a wish not to overwhelm the prefectures. This measure would, in fact, relate to only approximately 16,900 associations of a total estimated at 187,600, that is to say 9% of them.
The tax services could then exert a control on these documents of their own initiative or at the request of the prefect.
6. To create a High Council of Religions made up of representatives of the religious, scientific, and administrative authorities, charged to decide on requests relating to recognition as a cultuelle association, even those concerning obtaining the statute of congregation.
Several organizations commonly considered today as cults demand the right to benefit from the statute of cultuelle association envisaged by the law of December 9, 1905.
The question now arises of knowing if the existing legal device is satisfactory to face this type of request.
It is well understood that it would be dangerous to recognize with this statute pseudo-religious movements, movements which are presented in the form of a religion only to better lure people, but which, actually, pursue other goals such as making themselves richer, power, or an unspecified personal interest. The commission had been alerted on this point several times. Thus, one of the specialists whom it heard, moreover one of the most [mesurŽs? measured?], declared: "On what do the sects proliferate? On silence, on their dissimulated [hidden, pretended] side; by the language, which is that of religious language. It is necessary to start by refusing them what they demand, namely a religious statute, which would be the trap of the traps. The alleged argument would be a better control. But for the little bit of control that that would allow and that one can obtain by other means! [Rendez-vous? Appointment? Meeting? or literally Return-you? perhaps meaning Remember?] counts as prestige, which would be offered to them if a denominational statute were granted to them. That would be a true catastrophe."
On the other hand, nothing is more normal than that the authentic religious movements which wish tobe recognized as cultuelle associations and are ready to conform to their system can benefit from it.
It is thus appropriate that the Office of Religion [or Worships] of the Ministry for the Interior can, at the request of the interested organization and after examining its file, deliver this statute directly. Actually, the quality of cultuelle association is not, in effect, recognized that indirectly today by the Office of Religion of the Ministry of Interior or the prefecture at the time of a request aimed to make an association benefit from liberalities envisaged in article 19 subparagraph 4 of law of 9 December 1905, or articles 200 and 238 (a) of the general tax code, which allows their benefactors to claim income tax deductions. It would seem definitely preferable to your Commission that the recognition of this quality be made the object of a specific procedure, on the request of the interested organizations. It is, of course, to the Office of Religion that the care to grant the statute of cultuelle association should fall . But, taking into account the difficulty that there is often today to appraise the cultuelle [religous, worshipful] nature of an association, in particular when this one works towards multiple ends, your Commission estimates that it would be necessary that the Office of Religion decides with the advice of a council of persons qualified to judge.
It thus proposes to create a High Council of Religion, which would be composed of about thirty people named by the Prime Minister. One third of the council would be representatives from various recognized religions, one third would be persons attesting to an undeniable competence in the field of religions, and one third would be representatives from the various interested administrations (Office of Religion and Office of Public Freedoms of the Ministry for the Interior, Central Direction of General Information, Direction of Social Action, Ministry for National Education, etc...). Its opinion would be essential to the Office of Religion.
It would be advisable, consequently, to slightly amend the law of December 9, 1905 by indicating that the quality of cultuelle association is recognized by the Ministry for the Interior on assent of the High Council of Religion according to methods defined above.
Since the same problem can pose itself for requests relative to obtaining of statute of congregation, it is proposed, in order to ensure a parallelism of procedure, that the legal recognition of this statute be granted, not by decree on assent of the Council of State, as it is today envisaged by article 13 of law of 1st July 1901 relative to contract of association, but by decree on assent from the High Council of Religion.
5.- To help the former followers
Certainly it is important to prevent the dangers which the sects pose and to combat them better. But it is also necessary to help the former followers, some of which have lived, sometimes for several years, almost completely cut off from society, be this isolation physical or only mental. Also, after their exiting the sect, they generally encounter great difficulties reintegrating into society. At the same time, they are generally unaware of whom to ask for help with this undertaking. Your Commission thinks that it would thus be necessary that they can have a privileged interlocutor within the administration. In addition, detailed attention must be paid to the situation of former followers abroad.
1. To institute in each department a person in charge of assistance to former followers.
So that people who have just left a sect can easily get information about public services, information that they generally do not know, your Commission proposes that a person in charge of assistance to former followers be named in each department, either by the Prefect, or by the President of the General Council - the choice of the authority of nomination does not fundamentally change the answer brought to the problem. It is appropriate that this person, that this function would not necessarily be full-time, would have a good knowledge of the sectarian phenomenon and of public administration. It [the position] would have as its mission the study of the evolution of the sectarian movements in its department as well as the problems arising for the victims, of accomodating those and of directing them towards the administrative services and associations likely to solve their difficulties. It would give an account of its studies and its activities to its authority of nomination as well as to the observatory of the sects whose creation is proposed in addition. It could turn besides to this organization to obtain information, even consultations.
2. To more effectively help the expatriate followers who wish it.
According to various sources, the number of French belonging to a sect and living abroad is rather significant, without having the means to quantify it with even approximate precision. But, it is an established fact that several sects have an international dimension and do not hesitate, as, for example, Moon or the Church of Scientology, to send abroad followers recruited in France. Moreover, one cannot forget that certain organizations prosecuted by justice or the administration left the national territory.
However, these people are often in a situation even more precarious than that of the the followers residing in French territory, being in an unfamiliar environment and isolated from their family and their old friends.
The diplomatic and consular services today give substantial help today to find missing people and to repatriate them.
The Management of French Abroad of the Ministry for Foreign Affairs tries each year to answer several hundreds of requests for information from families about missing people. However, the diplomatic and consular services often rely heavily on the goodwill and the effectiveness of the local authorities to obtain an answer. Moreover, even when the missing person can be found, if this one does not wish that his address be revealed, the Ministry for Foreign Affairs is obliged to conform to this wish pursuant to the principle of respect for private life. Moreover, half of the people found express this wish.
In addition, the ministry has a line of credit of about 5 million francs [$841,500 US Dollars] to ensure medical and emergency repatriations for poor people. The ministry requires families to finance other forms of repatriation.
Two measures would be likely to improve the action of the public authorities in this field.
First, it would be appropriate, within the framework of reinforcement of international cooperation mentioned above, that France obtains from a number of countries, as significant as possible, the guarantee of sustained collaboration for these kinds of problems. Admittedly, no country would find it beneficial to see an illegal and dangerous organization developing in its territory .
Secondly, our diplomatic and consular services could, within this framework, increase their contacts and connections with local authorities likely to help them in the search for missing people.
CONCLUSION
Difficult to define, not very easy to measure, impossible to grasp as a whole, the cult phenomenon does not constitute an any less tangible reality in the contemporary world: the expression of multiple spiritual movements distinct from the traditional religions and characterized by specific beliefs and practices.
In fact, it is closely related to the major problems which arise for current societies, in that it causes the decline of traditional religions, the mutation of family structures, questioning of moral values, the place of policy [or politics], and the economic and social crisis. It is even, in a certain way, the reflection.
If its diversity and its complexity prevent rendering a precise account of its quantitative and qualitative evolution, the research carried out shows that it developed during the last decade in France and abroad. And this, as well as in number of organizations, of followers, and of sympathizers. At the same time, it presents more varied forms, it implements more sophisticated techniques, and has increased financial means.
The followers, growing in numbers, often engage completely, until they lose part of their identity. And it is there that the risk of deviation becomes serious, when engagement and the resulting absolute confidence are not being looked after [or treated, tended], to cut the ties with family, to give all the money one has. The intervention of the public authorities is essential when engagement leads to a psychological dependence which the leaders exploit to their own profit.
The judicial decisions rendered during recent years show well that a number of them are guilty of offences, ranging from deception or fraud to ill treatments, to aggravated assault and sequestration. In addition, information provided to the Commission and testimony that it received leave no doubt about the fact that the businesses exposed by justice give only a partial account of the dangers which the sects pose, which are in fact at the same time more numerous, wider and more serious.
The State cannot, obviously, allow to develop in its womb [the word "sein" which I translated "womb" can also refer to "breast," so this phrase is similar to the English "nursing a viper at one's breast."] that which, with much consideration, is part of a veritable scourge. To remain passive would be, indeed, not only irresponsible with regard to the people affected or likely to be affected, but dangerous for the democratic principles on which our Republic is founded.
Your Commission thus considers it essential to react. That being, it appeared that the best way of counteracting the development of dangerous sects is surely not most spectacular, in the form of anti-sect legislation that the extent of our legal arsenal does not make necessary and which would likely be be used one day in a spirit of restriction of freedom of thought. The essential thing, accordingly, is to fully make good use of the existing provisions, their systematic and rigorous application having made it possible to effectively fight against the sectarian drifts. For that purpose, it is initially necessary to better know - it that would permit the creation of an ad hoc observatory - and, especially, to better make known the phenomenon and the dangers that it can [recŽler?]. In addition, it is necessary to become attached to it [becoming attached to this cause as one would become attached to a person in an affectionate way] so that the institutions charged to apply the law in this field are sensitized there. Moreover, certain adjustments to the existing legislation appear desirable for better taking account of the evolution of sectarian associations. Lastly, it is significant that the former followers can be helped to reintegrate themselves into society. All measures which, according to your Commission, should be taken as soon as possible. In France we do not feel threatened by a tragedy of the Waco type, even an attack like that perpetrated by the Aoum sect in the subway of Tokyo last spring. But the germs of such dramas exist in our territory, and prevention is essential.
That known as, it is necessary to be lucid: the measures suggested here will probably not be enough alone to make these dangers disappear . Reflection of the difficulties of the current world, symptom of a profound social malaise, image of a moral crisis as much as a civic one, the sectarian phenomenon also calls for, indeed, a global response to the whole of the major problems of the contemporary epoch.
The Commission examined this report during its meeting of December 20, 1995 and adopted it unanimously.
It then decided that it would be given to Mr. President of the National Assembly in order to be printed and distributed, in accordance with the provisions of article 143 of the Regulations of the National Assembly.//
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